Subsistence Management Regulations for Public Lands in Alaska, Subparts C and D1995-1996 Subsistence Taking of Fish and Wildlife Regulations for the Kenai Peninsula

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 242

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 100

RIN 1018-AC82

Subsistence Management Regulations for Public Lands in Alaska,

Subparts C and D--1995-1996 Subsistence Taking of Fish and Wildlife

Regulations for the Kenai Peninsula

AGENCY: Forest Service, Agriculture; and Fish and Wildlife Service,

Interior.

ACTION: Final rule.

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SUMMARY: This rule establishes customary and traditional use

determinations and seasons and harvest limits related to the taking of

moose for subsistence uses on Federal lands on the Kenai Peninsula

during the 1995-1996 regulatory year.

EFFECTIVE DATES: The amendments to Sec. ____.24 are effective August

10, 1995. The amendments to Sec. ____.25 are effective August 10, 1995,

through June 30, 1996.

FOR FURTHER INFORMATION CONTACT:

Chair, Federal Subsistence Board, c/o U.S. Fish and Wildlife Service,

Attention: Richard S. Pospahala, Office of Subsistence Management, 1011

E. Tudor Road, Anchorage, Alaska 99503; telephone (907) 786-3447. For

questions specific to National Forest System lands, contact Ken

Thompson, Regional Subsistence Program Manager, USDA, Forest Service,

Alaska Region, P.O. Box 21628, Juneau Alaska 99802-1628, telephone

(907) 586-7921.

SUPPLEMENTARY INFORMATION:

Customary and Traditional Use Determinations

The Federal Subsistence Board (Board) implemented a systematic

program for review of customary and traditional use determinations as

provided for in 36 CFR 242 and 50 CFR 100. As a priority consideration,

the Board focused its determinations on community or area uses of large

mammals (ungulates and bears), examining uses of species of large

mammals by communities or areas rather than focusing on individual

herds or populations. The Board recognized that subsistence resource

use patterns of neighboring communities are often interrelated and

should be analyzed concurrently.

Existing regulations at 36 CFR 242.16(b) and 50 CFR 100.16(b)

identify eight factors that a community or area shall generally exhibit

which exemplify customary and traditional subsistence uses. The eight

factors are as follows:

1. A long-term consistent pattern of use, excluding interruptions

beyond the control of the community or area;

2. A pattern of use recurring in specific seasons for many years;

3. A pattern of use consisting of methods and means of harvest

which are characterized by efficiency and economy of effort and cost,

conditional by local characteristics;

4. The consistent harvest and use of fish or wildlife as related to

past methods and means of taking; near, or reasonably accessible from

the community or area;

5. A means of handling, preparing, preserving, and storing fish or

wildlife which has been traditionally used by past generations

including consideration of alteration of past practices due to recent

technological advances, where appropriate;

6. A pattern of use which includes the handing down of knowledge of

fishing and hunting skills, values and lore from generation to

generation;

7. A pattern of use in which the harvest is shared or distributed

within a definable community of persons; and

8. A pattern of use which relates to reliance upon a wide diversity

of fish and wildlife resources of the area and which provides

substantial cultural, economic, social and nutritional elements to the

community or area.

Each Federal Subsistence Regional Advisory Council (Regional

Council) has a substantial role in reviewing and developing information

on which to base a recommendation to the Board concerning customary and

traditional use determinations. The Southcentral Regional Council had

available for consideraton an extensive compilation of existing

information on historic and contemporary large mammal resource use

patterns by rural Kenai Peninsula communities. A draft report, dated

December 8, 1993, incorporated information from historic ethnographic

sources; census data; community surveys conducted by the Alaska

Department of Fish and Game, Division of Subsistence; and harvest

ticket and sealing records compiled by the Alaska Department of Fish

and Game.

During its public meeting of February 28-March 2, 1995, the

Southcentral Regional Council reviewed and discussed written

information and oral testimony on resource use patterns as related to

the eight factors for the Kenai Peninsula rural communities of

Whittier, Hope, Cooper Landing, Ninilchik, the Homer rural area,

Nanwalek (formerly known as English Bay), Port Graham and Seldovia.

Based on this review and discussion, the Southcentral Regional Council

developed and submitted to the Board recommendations for customary and

traditional use determinations for rural communities in Units 7 and 15.

The Board adopted these recommendations, and subsequently issued a

proposed rule announcing its action. Following the public comment

period for the proposed rule, the Southcentral Regional Council

convened in a public session on July 12, 1995, and re-evaluated the

recommendations reflected in the proposed rule, revising its

recommendation to the Board. The revised recommendations called for

positive customary and traditional use determinations for moose in Unit

15 by the communities of Ninilchik, Seldovia, Nanwalek, and Port

Graham. The revised recommendations also called for deferral of

customary and traditional use findings for species other than moose,

and for communities other than Ninilchik, Seldovia, Nanwalek, and Port

Graham.

At its July 13, 1995, public meeting, the Board amended the

proposed rule in response to several considerations. A primary

consideration was the revised recommendations submitted by the

Southcentral Regional Council. An additional consideration was

compelling public testimony calling into question the factual basis for

the proposed customary and traditional use determinations. A related

concern was that the customary and traditional use determinations in

the proposed rule may not have been supported by substantial evidence

reflecting the eight factors used to access customary and traditional

uses, particularly with regard to the factors concerning long-term

consistent pattern of local resource use and the community's pattern of

reliance upon a wide diversity of local resources for cultural,

economic, social and nutritional needs.

The Board adopted the Southcentral Regional Council's revised

[[Page 40462]]

recommendation to defer action on customary and traditional use

determinations for species other than moose, and for communities other

than Ninilchik, Seldovia, Nanwalek, and Port Graham. The Board also

adopted the Southcentral Regional Council's revised recommendation that

the communities of Ninilchik, Seldovia, Nanwalek, and Port Graham have

customary and traditional use of moose in Units 15(B) and 15(C). The

Board deferred the Southcentral Regional Council's recommendation

calling for positive customary and traditional use determinations for

moose in Unit 15(A) for the communities of Ninilchik and Seldovia

because use of this subunit by residents of Ninilchik and Seldovia is

extremely low. The aforementioned customary and use determinations are

found in the changes delineated for section ____.24.

Changes for the 1995-1996 Seasons and Bag Limit Regulations

The Regional Council also proposed Federal subsistence seasons for

the taking of moose on public lands in Unit 15. The Regional Council

recommendation was for an any-bull harvest season beginning August 10,

1995 and ending September 20, 1995. The Board, however, was persuaded

by the biological data concluding that recognized principles of fish

and wildlife conservation would be violated in that adverse impacts

would result to the moose population from any significant harvest of

bulls in the middle age categories. Since 1987, antler restrictions

have been a key part of the management efforts to rectify alarmingly

low bull:cow ratios in the Kenai Peninsula moose population. This

management regime has had positive effects, resulting in a dramatic

improvement in the moose population composition, allowing for longer

hunting seasons, larger animals being taken, and a larger overall

harvest. However, the gains could be reversed and conservation of a

healthy moose population jeopardized under an any-bull subsistence

harvest opportunity. The adverse impacts of an any-bull harvest could

also be detrimental to the satisfaction of subsistence opportunities

over the longer term. In addition, local wildlife biologists report

that the high snow fall of the 1994-95 winter has resulted in high

natural mortality, with virtually no recruitment into the spike-fork

age class of bull moose anticipated this coming year. The Board

therefore retained the antler restriction previously in effect as a

part of the subsistence seasons in Unit 15 to avoid adverse biological

consequences. The seasons and harvest limits are found in the changes

to section ____.25.

Regulations contained in this final rule will take effect on August

10, 1995. The Departments waived the 30-day effective date time period

for the final rule in order to provide the maximum opportunity for

public participation during the comment period following publication of

the proposed rule, while simultaneously allowing the hunting season to

start on August 10, 1995.

Applicability of Subparts A, B, and C

Subparts A, B, and C of the Subsistence Management Regulations for

Public Lands in Alaska, 50 CFR Secs. 100.1 to 100.24 and 36 CFR

Secs. 242.1 to 242.24, remain effective and apply to this proposed

rule. Therefore, all definitions located at 50 CFR Sec. 100.4 and 36

CFR Sec. 242.4 apply to regulations found in these subparts. The

identified sections include definitions for the following terms:

``Federal lands means lands and waters and interests therein title

to which is in the United States''; and ``public land or public lands

means lands situated in Alaska which are Federal lands, except--

(1) land selections of the State of Alaska which have been

tentatively approved or validly selected under the Alaska Statehood Act

and lands which have been confirmed to, validly selected by, or granted

to the Territory of Alaska or the State under any other provision of

Federal Law;

(2) land selections of a Native Corporation made under the Alaska

Native Claims Settlement Act which have not been conveyed to a Native

Corporation, unless any such selection is determined to be invalid or

is relinquished; and

(3) lands referred to in Section 19(b) of the Alaska Native Claims

Settlement Act.''

Public Review Process--Public Meetings and Analysis of Comments

Following publication of the proposed rule on May 9, 1995 (60 FR

24601), public meetings were held in Seldovia, Port Graham, Hope,

Cooper Landing, Soldotna, Homer, Ninilchik, and Anchorage. The

Southcentral Regional Council met in a public session on July 12, 1995,

to review the proposed rule and public comments and to develop a final

recommendation to the Board. The Board also met in a public session on

July 13, 1995, to review the comments and reach a final decision on the

proposed rule. During the 60-day comment period and in the months

preceding it, the Board received 183 written comments, numerous phone

calls, and one petition, in addition to oral testimony presented at the

various meetings which were attended by over 500 people. The comments

and testimony were overwhelmingly opposed to the proposed rule and the

rural designations on the Kenai Peninsula. Following is an analysis of

public comments:

A number of commentors indicated that their community's proposed

customary and traditional use determinations were in error,

particularly for some communities in Unit 15. As discussed above, the

Regional Council and Board have reexamined those determinations. The

final rule reflects revised customary and traditional use

determinations that comport with the best information available

relative to customary and traditional uses.

Some commentors felt that the moose season is being set too early

in the year. The weather is too warm and the meat will spoil before it

can be taken care of. This concern is not without merit, but the State

has used early seasons on a regular basis and, if harvested wildlife

are dressed immediately and kept cool, the meat can be prevented from

spoiling. A later season would expose rutting bulls to possible

overharvest and the meat of bulls in rut is not as palatable.

Two commentors suggested eliminating hunting seasons and initiating

a family harvest quota. If seasons were eliminated, hunting during the

summer could significantly increase the harvest of prime breeding

animals because of incomplete antler development; hunting during the

spring could put unwanted stress on the pregnant cows, possibly

reducing the calving rate. Existing regulations do allow the Board to

establish a family quota, community harvest system, or other

alternative harvest systems consistent with historic harvest patterns.

A family quota system was not part of the recommendation before the

Board in the current rulemaking. However, a proposal requesting this

type of system could be submitted this fall for Board consideration in

the next regulatory cycle.

Some commentors believed that the antler restrictions are not a

customary and traditional harvest practice and are a restriction on the

subsistence user. The Board recognizes that harvesting animals based on

antler restrictions is not a customary or traditional practice.

However, antler restrictions have been demonstrably effective in

improving the health of the Kenai Peninsula moose population, which

suffered from very low bull:cow ratios as recently as 1986.

[[Page 40463]]

These antler restrictions protect the continued opportunity for the

satisfaction of subsistence needs over the long term and provide more

meat for the subsistence user.

Some commentors believed that ANILCA requires that Federal lands be

closed to harvest by non-subsistence users before any restriction, such

as the antler restriction, is imposed on subsistence hunters. The Board

recognizes the responsibility to provide a meaningful priority for

subsistence uses over non-subsistence uses on the Federal public lands,

and that non-subsistence uses must be reduced or proscribed before

subsistence uses are limited. The Board determined that after a decade

and a half with no subsistence seasons, the Federal subsistence moose

season for Unit 15(B) and 15(C) on the Kenai Peninsula represents a

major advance in providing for subsistence uses. The subsistence moose

season adopted by the Board implements a subsistence priority in that

during the first ten days of the season, subsistence users exercise an

exclusive harvest opportunity on Federal public lands. This will result

in a significant reallocation of harvest toward subsistence users. Non-

Federally qualified subsistence users are restricted to entering

Federal lands to hunt moose ten days later under the State season

starting on August 20. The Federal and State seasons both end of

September 20, and both include the antler restriction, which is at the

center of management efforts to conserve a healthy moose population on

the Kenai Peninsula.

Many commentors believed that the rural priority unfairly

discriminates against non-rural residents. Sections 801(5), 802(1), and

803 of ANILCA confine the eligibility for qualifying for a subsistence

priority to rural Alaska residents. The Board is obligated to implement

the rural priority as mandated by Congress in ANILCA.

A large number of commentors believe that the communities of Hope,

Cooper Landing, Ninilchik, and other areas on the Peninsula with the

exception of Port Graham, Nanwalek, and possibly Seldovia are non-

rural. The issue of whether or not a community is rural or nonrural for

the purposes of Title VIII is beyond the scope of this rulemaking. The

Board will, however, in the future, reexamine these communities to

determine if their status should be changed. That effort will be widely

publicized and comments solicited from the public.

Two commentors indicated that they believed an economic analysis

should be completed for this rule. The economic impacts of this rule

are minimal, because there is no closure of Federal public lands to

non-Federally qualified users. Should it be necessary to close the

Federal lands to non-Federally qualified users, a more detailed

examination of the economic impacts will be completed.

A number of commentors were concerned about non-residents and part-

time summer residents, as well as new residents hunting under the

Federal Subsistence Management regulations. Federal regulations

prohibit anyone except Federally-qualified subsistence users from

hunting under the Federal Subsistence Management regulations. The

regulations define resident as ``any person who has his or her primary,

permanent home within Alaska and whenever absent . . . has the

intention of returning to it.'' These regulations automatically

disqualify nonresidents and part-time residents. They do provide the

opportunity for new residents moving permanently into a rural community

to adopt the practices of that community, including the subsistence

taking of fish and wildlife resources.

A few commentors felt that non-rural residents were discriminated

against because they had no representation on the Southcentral Regional

Council. The only requirement for membership on the Regional Council is

residency within the region. Applications are solicited annually with

the most qualified individuals, based on their knowledge of subsistence

uses and needs and their knowledge of other uses of fish and wildlife

resources, being recommended to the Secretaries for appointment.

Members of the Regional Councils represent their entire region.

Currently two members of the Southcentral Regional Council are from the

Kenai Peninsula.

A few individuals stated that there was inadequate opportunity for

public input. Recognizing the level of public concern and the

importance of this issue, the Board set a comment period that exceeded

60 days and held public hearings in 7 communities on the Kenai

Peninsula plus Anchorage. The hearings were held during the day and in

the evening, during the week and on the weekend to provide ample

opportunity for public comment.

Some commentors felt that the proposed regulations ignore the

purposes for which the Kenai National Wildlife Refuge was established

and that subsistence is not consistent with those purposes. The

purposes of the refuge as stated in Section 303 of ANILCA and the

Section 804 subsistence priority are not mutually exclusive.

Implementation of the subsistence priority does not prevent the Fish

and Wildlife Service from fulfilling its responsibility to manage the

Kenai Refuge according to the Section 303 purposes.

Many commentors indicated that the Federal government should not be

involved in management of fish and wildlife resources in Alaska. The

Secretaries and the Board agree that it is preferable for the State of

Alaska to manage the subsistence taking and use of fish and wildlife.

However, until such time as the State comes into compliance with Title

VIII, the Federal government must provide implementation of Title VIII

as directed by Congress.

Conformance with Statutory and Regulatory Authorities

National Environmental Policy Act Compliance

A Draft Environmental Impact Statement (EIS) that described four

alternatives for developing a Federal Subsistence Management Program

was distributed for public comment on October 7, 1991. That document

described the major issues associated with Federal subsistence

management as identified through public meetings, written comments and

staff analysis and examined the environmental consequences of the four

alternatives. Proposed regulations (Subparts A, B, and C) that would

implement the preferred alternative were included in the DEIS as an

appendix. The DEIS and the proposed administrative regulations

presented a framework for an annual regulatory cycle regarding

subsistence hunting and fishing regulations (Subpart D). The Final

Environmental Impact Statement (FEIS) was published on February 28,

1992.

Based on the public comment received, the analysis contained in the

FEIS, and the recommendations of the Federal Subsistence Board and the

Department of the Interior's Subsistence Policy Group, it was the

decision of the Secretary of the Interior, with the concurrence of the

Secretary of Agriculture, through the U.S. Department of Agriculture-

Forest Service, to implement a modified Alternative IV as identified in

the DEIS and FEIS (Record of Decision on Subsistence Management for

Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS

and the selected alternative in the FEIS defined the administrative

framework of an annual regulatory cycle for subsistence hunting and

fishing regulations. The final rule for Subsistence Management

Regulation for Public Lands in Alaska, Subparts A, B, and C (57 FR

22940-

[[Page 40464]]

22964) implements the Federal Subsistence Management Program and

includes a framework for an annual cycle for subsistence hunting and

fishing regulations.

Compliance with Section 810 of ANILCA

The intent of all Federal subsistence regulations is to accord

subsistence uses of fish and wildlife on public lands a priority over

the taking of fish and wildlife on such lands for other purposes,

unless restriction is necessary to conserve healthy fish and wildlife

populations. A Section 810 analysis was completed as part of the FEIS

process. The final Section 810 analysis determination appears in the

April 6, 1992, ROD which found that the Federal Subsistence Management

Program, under a modified Alternative IV with an annual process for

setting hunting and fishing regulations, had no significant possibility

of a significant restriction of subsistence uses.

Paperwork Reduction Act

These rules contain information collection requirements subject to

Office of Management and Budget (OMB) approval under 44 U.S.C. 3501-

3520. They apply to the use of public lands in Alaska. The information

collection requirements described above are approved by the OMB under

44 U.S.C. 3501 and have been assigned clearance number 1018-0075.

Public reporting burden for the permit(s) required by this document

is estimated to average .1382 hours per response, including time for

reviewing instructions, gathering and maintaining data, and completing

and reviewing the form. Direct comments on the burden estimate or any

other aspect of this form to: Information Collection Officer, U.S. Fish

and Wildlife Service, 1849 C Street, NW, MS 224 ARLSQ, Washington, DC

20240; and the Office of Management and Budget, Paperwork Reduction

Project (1018-0075), Washington, DC 20503. Additional information

collection requirements may be imposed if Local Advisory Committees

subject to the Federal Advisory Committee Act are established under

Subpart B. Such requirements will be submitted to OMB for approval

prior to their implementation.

This rule was not subject to OMB review under Executive Order

12866.

Economic Effects

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)

requires preparation of flexibility analyses for rules that will have a

significant effect on a substantial number of small entities, which

includes small businesses, organizations or governmental jurisdictions.

The Departments have determined that this rulemaking will not have a

significant economic effect on a substantial number of small entities

within the meaning of the Regulatory Flexibility Act.

This rulemaking will impose no significant costs on small entities;

the exact number of businesses and the amount of trade that will result

from this Federal land-related activity is unknown. The aggregate

effect is an insignificant positive economic effect on a number of

small entities. The number of small entities affected is unknown; but,

the fact that the positive effects will be seasonal in nature and will,

in most cases, merely continue preexisting uses of public lands

indicates that they will not be significant.

These regulations do not meet the threshold criteria of

``Federalism Effects'' as set forth in Executive Order 12612. Title

VIII of ANILCA requires the Secretaries to administer a subsistence

preference on public lands. The scope of this program is limited by

definition to certain public lands. Likewise, these regulations have no

significant takings implication relating to any property rights as

outlined by Executive Order 12630.

Drafting Information

These regulations were drafted by William Knauer under the

guidance of Richard S. Pospahala, of the Office of Subsistence

Management, Alaska Regional Office, U.S. Fish and Wildlife Service,

Anchorage, Alaska. Additional guidance was provided by Thomas H. Boyd,

Alaska State Office, Bureau of Land Management; Sandy Rabinowitch,

Alaska Regional Office, National Park Service; John Borbridge, Alaska

Area Office, Bureau of Indian Affairs; and Ken Thompson, USDA-Forest

Service.

List of Subjects

36 CFR Part 242

Administrative practice and procedure, Alaska, Fish, National

Forests, Public Lands, Reporting and recordkeeping requirements,

Wildlife.

50 CFR Part 100

Administrative practice and procedure, Alaska, Fish, Public Lands,

Reporting and recordkeeping requirements, Wildlife.

For the reasons set out in the preamble, Title 36, Part 242, and

Title 50, Part 100, of the Code of Federal Regulations, are amended as

set forth below.

PART ____--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN

ALASKA

1. The authority citation for both 36 CFR Part 242 and 50 CFR Part

100 continues to read as follows:

Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C.

3551-3586; 43 U.S.C. 1733.

2. Section ____.24(a)(1) is amended in the table under ``Area,''

``Species,'' and ``Determination'' by removing the entry for ``Unit 15

(A) and (B),'' and two entries for ``Unit 15(C)'' for ``Moose'' and

adding the following new entries in their place to read as follows:

Sec. ____.24 Customary and traditional use determinations.

(a) * * *

(1) * * *

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Area Species Determination

------------------------------------------------------------------------

* * * *

* * *

Unit 15(A)........... Moose................ No subsistence.

Unit 15 (B) and (C).. Moose................ Residents of Ninilchik,

Seldovia, Nanwalek, and

Port Graham.

* * * *

* * *

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* * * * *

3. Section ____.25(k)(15)(iii)(D) is amended in the table under

``Hunting'' by adding an entry for ``Moose'' after the entry for

``Black Bear'' to read as follows:

Sec. ____.25 Subsistence taking of wildlife.

* * * * *

(k) * * *

[[Page 40465]]

(15) * * *

(iii) * * *

(D) * * *

------------------------------------------------------------------------

Harvest limits Open season

------------------------------------------------------------------------

HUNTING:

* * * *

* * *

Moose:

Unit 15 (B) and (C)--1 antlered bull with Aug.10-Sept. 20.

spike-fork or 50-inch antlers or with 3

or more brow tines on either antler, by

Federal registration permit only.

Remainder of Unit 15...................... No open season.

* * * *

* * *

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* * * * *

Dated: July 27, 1995.

Richard S. Pospahala,

Acting Chair, Federal Subsistence Board.

Dated: July 28, 1995.

Robert W. Williams,

Regional Forester, USDA--Forest Service.

[FR Doc. 95-19483 Filed 8-8-95; 8:45 am]

BILLING CODE 3410-11-M; 4310-55-M